THE INTERNATIONAL LEGAL REGIM OF OUTER SPACE

Transcription

1 Appendix THE INTERNATIONAL LEGAL REGIM OF OUTER SPACE F E Introduction Few human endeavors have occasioned the degree of international legal scrutiny given to the development of space technology. Because space activities generally involve technologies that do not respect national boundaries, new stresses have been placed on traditional international legal principles. These principles, based on the rights and powers of territorial sovereignty, are often in conflict with the most efficient utilization of new space systems. In order to resolve the complex legal problems that have arisen in the space age, nations, both technologically advanced and developing, have been forced to rely increasingly on international cooperation. The purpose of this appendix is to discuss the important legal principles and international organizations that have been developed to regulate the use of outer space. Additionally, it describes the possible effects that these principles and organizations may have on private sector interest and investment in specific space systems. It should be noted that since this discussion focuses exclusively on the international legal regime of outer space, the many complex issues involved in the domestic regulation of private investment in space technology are not discussed. International Organizations This appendix only discusses the activities of the Committee on the Peaceful Uses of Outer Space (COPUOS), the International Telecommunication Union (ITU), and the United Nations Education, Scientific and Cultural Organization (UNESCO). Though there are numerous other international organizations whose activites involve outer space to some degree, most are not involved in formulating of international law and policy. Committee on the Peaceful Uses of Outer Space COPUOS has been, and continues to be, the chief architect of the international legal regime of outer space. COPUOS was established by resolution of the General Assembly of the United Nations (U. N.) in 1958 to study the problems brought into existence by the advent of the space age,l COPUOS is composed U.N. General Assembly Resolution 1348 (X111) QuestIon of the Peaceful Use of Outer Space, Dec. 13, of two subcommittees, one of which studies the scientific and technical, and the other the legal aspects of space activities. Since its inception, the Legal Subcommittee has been responsible for the formulation of five major treaties: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1 967) 2 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) 3 Convention on International Liability for Damage Caused by Space Objects (1 972) 4 Convention on Registration of Objects Launched into Outer Space (1 974) 5. Agreement Governing the Activities of States on the Moon and Other-Celestial Bodies (1979)6 With the exception of the 1979 Moon agreement, the United States has signed and ratified each of these international agreements. COPOUS is currently conducting negotiations in the following areas: Remote sensing. COPUOS has been negotiating a statement of principles on remote sensing since Considerable disagreement still exists between states on this subject and it is unlikely that a consensus will be reached in the near future. Direct broadcast satellites. COPUOS has been involved in trying to reach agreement on a set of principles for direct broadcast satellites since However, there seems to be no easy solution to the debate betweeen states advocating UST 241 O; TIAS 6347; Senate Report No. 8, 90th Cong. 1 st sess., April 17, 1967; Senate CommKtee on Aeronautical and Space Sciences, 90th Cong., 1st sess., staff report on Treaty on Prlnclpies Governing the Actlwtles of States in the Exploration and Use of Outer Space, committee print, UST 7570; TIAS 6599; Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched Into Space: Analysis and Background Data; Senate Committee on Aeronautics and Space Science, 90th Cong. 2d sess., committee print, July 16, UST 2389; TIAS 7762; Senate Committee on Aeronautics and Space Sciences, 92d Cong., 2d sess., staff report on Convention on international Liability for Damage Caused by Space Ob)ects, committee print, TIAS 848(I; Senate Committee on Aeronautical and Space Sciences; 94th Cong., 1st sess,, staff report on ConventIon on Registration of Objects Launched into Outer Space, committee print, U. N. General Assembly Resolution A/34/68, Dec. 14, 1979; Senate Committee on Commerce, Science, and Technology, 96th Cong., 2d sess., Agreement Governing the Activities of States on the Moon and Other Celestlal Bodies, committee print,

2 348. Civilian space Policy and Applications free flow of information and those advocating a regime of prior consent. Ž Nuclear power sources in space. Since the Cosmos 954 accident in 1978, in which radioactive debris from a Soviet satellite fell on northern Canada, there has been increased international concern over use of nuclear energy to power satellites. COPUOS has focused its attention on four major issues: safety, prior notification, emergency assistance, and liability for damages. To date, no international consensus has been reached. Ž Delimitation of outer space. The question of where air space ends and outer space begins has troubled international legal theorists since the beginning of the space age. The Soviets have recently proposed that outer space should be considered to begin in the area of 100 to 110 km above sea level, The United States has consistently maintained that no decision should be taken until a more complete understanding of the scientific and technical characteristics of low-orbit satellites is obtained. Military activities in space. COPUOS has periodically addressed issues relating to militarization; current treaties ban nuclear weapons and other weapons of mass destruction. Discussions of military activities have increased lately, now that both the United States and the Soviet Union are developing anti-satellite devices and other weapons. A number of developing countries have objected to militarization, and in 1981 the Soviet Union proposed that the General Assembly discuss a draft treaty prohibiting the stationing of all weapons in outer space, with special reference to the U.S. space shuttle. The U.S. has objected to attempts by COPUOS to take up this issue. International Telecommunication Union ITU is an international, intergovernmental organization and the U.N.S specialized agency for telecommunications. 7 The purpose of ITU is to coordinate and regulate international activities in the field of communications. Since radio communication is essential to all outer space activities, it was logical that ITU be charged with the task of allocating radiofrequencies for space as well as terrestrial communications. To this end, a World Administrative Radio Conference (WARC) was held in 1959 that resulted in the first international agreements applicable to space activities. The basic governing documents of ITU are its Constitution and its Administrative Regulations. The Con- 7 For a detailed look at ITU, see, Radiofrequerrcy Use and Management: Impacts From the World Administrative Radio Conference of 1979, Office of Technolorw. Assessment, stitution is revised by the Plenipotentiary Conference when technological (and recently, political) changes reduce the effectiveness of existing provisions. The Administrative Regulations are updated more frequently through WARCS and Regional Administrative Radio Conferences (RARCS) and are the means by which the technical coordination and regulation of international communications is actually accomplished. Membership is open to all countries and currently ITU has 154 members. The formal results of RARCS and WARCS are reached by each country exercising one vote and, when ratified by the member states, they have the force of international treaties. The primary function of ITU is to allocate the radiofrequency spectrum among competing services (e.g., fixed, mobile, aeronautical, maritime, and space) and to register the frequency assignments of its member states in order to avoid interference. The international Frequency Registration Board (IFRB) of ITU performs many of these important technical functions. IFRB records the frequency assignments made by different countries in accordance with WARC and RARC regulations and furnishes advice to ITU members on technical matters (e.g., the maximim practicable number of radio channels in those portions of the spectrum where harmful interference may occur). In 1973, the duties of ITU were enlarged by a modification of its Convention. This modification provided that IFRB was to effect... an orderly recording of the positions assigned by countries to geostationary satellites. 9 ITU has been the major forum in the recent debates regarding the a priori grant of portions of the radio spectrum and the geostationary orbit to countries presently lacking space technology. This subject is discussed in greater detail in section IV. UNESCO Though UNESCO does not have a technical or regulatory role such as ITU nor a broad mandate similar to that of COPUOS to address international space issues, it has been active in the discussion of spacerelated problems. Some of its more important activities include: Convention on satellite signal piracy. UNESCO, together with the World Intellectual Property Organization, sponsored an international conf erence in 1974 which adopted the Convention r Relating to the Distribution of Program me-carrying Signals Transmitted by Satellite.l O States party International Telecommunications Convention (Geneva), Dec. 21, 1959; TIAS 4892, 12 UST glnternational Telecommunication Convention, 1973, article 10(3); TIAS N.M. Matte, Aerospace Law, 1977, PP

3 Appendix F The International Legal Regime of Outer Space Ž 349 to the Convention agree to take adequate measures to prevent the distribution of program e- carrying signals by unauthorized personnel. Satellite broadcasting and the free flow of information. UNESCO has also been working on a Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange. 11 Strong objections have been voiced against this declaration on the grounds that instead of encouraging the free-flow of information, it encourages censorship. Many believe that this Declaration of Principles was used by its authors as a means to attract international attention to the New World Information Order (discussed infra, sec. Ill (c)(3)). Technical assistance to member states. UNESCO has worked with a number of African, Asian, and Latin American states, helping them to assess their general communication needs. UNESCO is presently conducting several long-range studies to determine the practicality of using regional satellite systems to supply educational and cultural development programs to certain developing countries. The Status of Nongovernmental Entities As the role of private industry varies within each of the nations of the world, and as it is those nations and not their private industries that enter into international space agreements, it is understandable that some confusion exists as to the legal status of private industry in outer space. This section will examine some of the practical and theoretical problems that arise when trying to fit the activities of private enterprise into a framework designed primarily to regulate the actions of states. In the United States, it has been consistent government policy to encourage the involvement of private enterprise in its space programs. When President Eisenhower announced his administration s space policy in 1960, he stated: (T)o achieve the early establishment of a communication satellite system which can be used on a commercial basis is a national objective which will require the concerted capabilities and funds of both Government and private enterprise... With regard to communication satellites, I have directed the National Aeronautics and Space Administration to take the lead within the Executive Branch both to advance the needed research and development and to encourage private enterprise to apply its resources toward the earliest practical 11 u,n, Document A/AC, 105/1 04, Jllly 2S, utilization of space technology for commercial civil communications requirements (emphasis added). This enthusiasm for private enterprise was not shared by all nations. In 1962, the Soviet Union submitted to COPUOS a Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space. It was suggested in the draft that, All activities of any kind pertaining to the exploration of outer space shall be carried out solely and exclusively by States The United States responded to this position by pointing out that pursuant to U.S. policy, as reflected in the Communications Satellite Act of 1962, private firms had already been given the right to engage in space activity. In order to reconcile this conflict, the United States proposed that states bear the responsibility for the launching of space vehicles, whether such vehicles be the property of the state or its nationals. 14 In this manner, the United States hoped to reassure other states that private activity could be controlled, albeit indirectly, through international regulation. The principle of state responsibility for the actions of its nationals is incorporated in both articles Vi and IX of the 1967 Outer Space Treaty. 15 Although the 1967 Principles Treaty does not specifically grant private industry the right to undertake activities in outer space, the U.N. debates on this subject make it clear that such activities were contemplated by the drafters. A few authors have suggested that though the 1967 Principles Treaty may sanction the presence of nongovernmental entities in space, article I can be read to prevent the commercial use of outer space. 16 Article I states, in relevant part: The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. It is argued that commercial use would be contradictory to article 1, in that its drafters intended the benefits of outer space exploration and use to flow to all mankind, and not to private investors. This somewhat technical argument finds little support in either the specific language of the 1967 Outer Space Treaty or its legislative history. 1 ZWhite House Press Release, Dec. 30, 1960; see also, D. D, Smi[h, Communication wa Satellite, 1976, p. 72. I JU N. Document A/AC. 105/L.2; U. N. Document A/5/81 Annex 3. 14u N, DOcu ment A/AC. 105/L.5 U, N. Document A/5/81, Annex 3. I Ssee Aflicle VI of the Outer Space Treaty. 16see, for example, Marcuff, Traite de Droit International Public de 1 Espace, 1973, p. 671.

4 350 Civilian Space Policy and Applications State Responsibility for Nongovernment Entities Given that private enterprise may conduct activities in space for profit if the appropriate state will take responsibility for such actions, it becomes necessary to examine the nature of this responsibility. Some authors, in analyzing article VI of the 1967 Principles Treaty, have suggested that a state s responsibilities are extensive: (While no one would doubt the need for government control over space activity at its present stage, the second sentence of article VI would prohibit, as a matter of treaty obligation, strictly private, unregulated activity in space or on celestial bodies even at a time when such private activity becomes most commonplace. Although the terms authorization and continuing supervision are open to different interpretations, it would appear that Article VI requires a certain minimum of licensing and enforced adherence to government-imposed regulations. 7 In addition to article Vi s general statement of responsibility, article IX of the Principles Treaty requires that if a state or its nationals are going to undertake any activity in space which would cause potentially harmful interference with activities of other states, then the state planning the activity shall undertake appropriate international consultation before proceeding with any such activity. 18 Article IX S requirement that the international consultation shall precede the proposed activity is quite significant, in that it imposes an active duty to regulate rather than a merely passive duty to supervise. Under article IX a state has a duty to interfere with or prohibit altogether potentially harmful activities by its nationals at least until such time as the effects of the proposed activity are made known to the international community. The Outer Space Treaty does not attempt to direct states as to how these responsibilities should be carried out. This is appropriate since a state s control over its nationals involves complex questions of domestic law. The 1967 Outer Space Treaty, on the other hand, was not written to supply an exhaustive set of rules to regulate the conduct of states, but rather to sketch the rough outline of a new international regime. One of the more important attempts to delineate the responsibilities of states in outer space occurred in 1972 with the adoption by COPUOS of the Convention on International Liability for Damage Caused by Space Objects. This treaty extends the concept of state responsibility to include the concept of liability for damage caused by space objects. Article II of the Liability Treaty establishes the principle that a launching state is absolutely liable for damage caused by 1 Zjaserltuleyarla and Lee, Manual Of Space Law, VOI. 1, 1 379, P. 17. lasee Article IX of the Outer Space Treaty. its space object on the surface of the Earth or to aircraft in flight. 19 Two points should be mentioned here. First, the 1972 Liability Convention does not grant either rights or responsibilities to nongovernmental entities. If the nationals of a launching state cause damage, it is the state damaged, under article Vlll, which may present to a launching state a claim for compensation. 20 This somewhat formalistic approach to compensation is sufficient at this time since states exercise almost complete control over launch and tracking facilities and there is no pure private enterprise in outer space. However, as the activities of private enterprise increase in frequency and scope, new and more efficient procedures will have to be developed to handle the claims for compensation which are certain to arise. A second point of interest concerning the Liability Convention is the fact that it applies, by its terms, only to launching states which are defined in article I as: a state that launches or procures the launching of a space object; and a state from whose territory or facility a space object is launched. Under this scheme, if state A launches a space object for the nationals of state B, both states are considered launching states and have joint liability for damage under article V of the Liability Convention. This is the case even though under the language of article IX of the 1967 Principles Treaty it is state B that bears the international responsibility for the potentially harmful activities of its nationals. This problem is somewhat alleviated by article V of the Liability Convention that allows a state that has paid compensation for damages to present a claim for indemnification to other participants in the joint launching. These rather complex international remedies are presently workable only because it is the activity of states and not individuals that predominates in space. As this situation changes a new legal regime, which more fully comprehends the role of the individual in space activities, will have to be developed. Limitations on Nongovernmental Entities Having discussed the status of private activity in space and the methods of control over such activity, it is important now to examine the limitations that the present legal regime of outer space places on the activities of the private sector. To answer this question requires an analysis of several recently articulated principles. These are the Principle of Nonappropriation Igsee Article II of the Outer Space Treaty. %ee Article Vlll of the Outer Space Treaty.

5 Appendix F The International Legal Regime of Outer Space 351 of Space Resources, the Principle of the Common Heritage of Mankind (CHM), and the New World Information Order. PRINCIPLE OF NONAPPROPRIATION The 1963 Declaration of Legal Principles included the statement that, Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. 2l With minor changes, this language is repeated in article II of the 1967 Outer Space Treaty and article Xl (2) of the proposed Moon Treaty. The legislative history of these instruments and the subsequent activities of states has revealed little controversy concerning the prohibition against appropriation by claim of sovereignty. However, this harmony of opinion has not recently been shared with regard to the prohibition against appropriation by means of use or occupation. The issue of appropriation by use and occupation involves a number of complex considerations. Most ventures into space involve some degree of appropriation, since the placement of a satellite into orbit precludes the use by other states of that same orbit, Any alteration of the present first come, first served use of the geostationary orbit or in the rights of priority now recognized as applying to currently operating systems could have serious repercussions on the U.S. communications industry. Some third world countries have suggested that radiofrequency assignments and the incidental use of the geostationary orbit should be limited to the life of the satellite. This suggestion is contrary to the current practice in the United States. In the United States, the Federal Communications Commission licenses communication common carriers to provide a continuous service to the public. Some third world countries have argued that this method of continuous use is tantamount to an appropriation. As a result they advocate the a priori allocation of radiofrequencies and orbit positions (see sec. IV infra). The proposed Moon Treaty recognizes the problems inherent in a first come, first served method of allocating resources and attempts to limit the effects of de facto appropriation on the exploration and exploitation of the Moon and other celestial bodies. 22 The recognition of the problem appears in article Vlll where it is stated that states parties shall not interfere with the activities of other states parties, This section clearly grants an important right to first users of Moon resources. This right is then qualified by ar- ZI u,fq. General Assembly Resolution 1962, article XVIII, par LJ,N. General Assembly Resolution 34/68, Agreement Governing the Actlvltles of States on the Moon and Other Celestlal Bodies, Dec. 14, ticle IX S statement that a station shall use only that area which is required for the needs of the station and article Xl (3) s statement that such stations shall not create a right of ownership over the surface or subsurface of the Moon or any areas thereof. THE COMMON HERITAGE OF MANKIND (CHM) Though the CHM principle is complex in its application, in theory it is quite simple. Basically stated, the principle maintains that there are certain resources, such as the minerals on the ocean floor and on the Moon, that are presently under the jurisdiction and control of no sovereign power. These resources, being finite and exhaustible, should not be allocated to the developed countries on a first come, first served basis, but rather, should be used for the benefit of all nations. Though this principle has recently received its greatest attention in relation to the Law of the Sea Convention, it has frequently appeared in discussions concerning the exploration and use of outer space. 23 In 1958, when President Eisenhower announced his administration s space policy, he called upon states to promote the peaceful use of space and to utilize the new knowledge obtained from space science and technology for the benefit of mankind. 2 4 Subsequent to this statement, the concept that space activities should be undertaken for the benefit of mankind appeared in the NAS Act of 1958,25 in important General Assembly resolutions on space and as article I of the 1967 Principles Treaty. Although these common interest clauses found their way into the major space treaties, there was considerable uncertainty as to their status within the body of international law. Some authors have suggested that these common interest clauses were merely pragmatic principles without legal force. Others believe that the placement of the common interest clauses within the operational part of treaties, as opposed to a mere statement of intentions in the preamble, indicated that such provisions must be regarded as binding. 2 G As a binding principle it ZJR. B, Owens, statement at hearings on the Moon Treaty, Agreement Govern~ng the Activkies of States on the Moon and Other Celestlal Bodies, before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 96th Cong., 2d sess., Ambassador M C. W. Pinto of Srl Lanka has Interpreted the CHM principle to apply to the law of the sea In this manner: Thts (Common Heritage of Mankind) means that those (seabed) minerals cannot be freely mined. They are not there, so to speak, for the taking. The common heritage of mankind is the common property of mankind.. If you touch the nodules at the bottom of the sea, you touch my propefly. If you take them away, you take away my property. Z4 lntroductton to Outer Space, an explanatory statement by the President s Science Adwsory Commmee, 1958, p C. Q. Christol, The Legal Common Heritage of Mankind: Capturing an Illusive Concept and Applylng it to World Needs, XVIII the Co//oqutum on the Law of Outer Space, 1976, p bN. M. Matte, Aerospace Law: Telecommunications SatellNes, Center for Research of Air and Space Law, McGIII University, p. 38.

6 352 Ž Civilian Space Policy and Applications created an obligation among states to be in some form responsive to the interest of developing countries, and to provide for some form of distribution of benefits derived from such (space) activities. 27 The principle of CHM has generally been opposed by the private sector. The most common argument heard in this regard is that any attempt at international regulation of the profits derived from space will inhibit private enterprise from making the necessary investments in space technology. Advocates of this position often point to article Xl (7) of the proposed Moon Treaty s statement that one of the purposes of the international regime is to assure an equitable sharing of resources. 28 It is argued that the concept of equitable sharing is inconsistent with the concept of profit, and in the absence of the profit motive private enterprise cannot be expected to risk capital on space investments. The most repeated criticism of the CHM principle is that it lacks proper definition. It is argued that its novelty, generality, philosophical underpinnings as opposed to legal and uncertain historical pedigree render it far too vague to act as a tool in the regulation of international conduct. 29 These criticisms are valid at least to the extent that they regard the principle s uncertainty, for except for article Xl of the Moon Treaty s suggestion of an international regime, nowhere are a state s duties under the CHM principle defined. THE NEW WORLD INFORMATION ORDER The New World Information Order is a principle espoused by the Soviet Union and certain third world countries that maintains that there is an imbalance in both the amount and kind of news emanating from the information and communication systems controlled by the Western industrialized nations. These countries allege that as a result of this imbalance the third world and communist countries have been portrayed in a distorted manner to the populations of the developed countries, while the populations of the de- ZTlbid., p. 39. Z8Article XI (7) of the Moon Treaty states: 7. The main purposes of the international regime to be established shall include: (a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countires as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon shall be given special consideration. %. Q. Christol, The Common Heritage of Mankind in the Moon Treaty, paper submitted to symposium on Space Activities and Implications, Center for Research of Air and Space Law, McGill University, Oct , veloping countries have been subjected to the cultural imperialism of a capitalist, consumer-oriented society. The New World Information Order seeks to remedy this situation by: 1 ) encouraging the development of a third world information infrastructure; 2) controlling the West s access to developing countries; and 3) limiting the Western media s ability to disseminate information in developing countries. so The long-term effects of this principle on the free flow of information throughout the world are, for the most part, beyond the scope of this report. However, the continued adherence to the New World information Order by a substantial number of Communist and third world countries could have important near-term effects in the field of satellite communications. Most notably, the Western developed nations can expect to encounter strong opposition to the previously used first come, first served method of allocating the electromagnetic spectrum and the orbital positions in the geostationary arc (discussed in greater detail below). In addition, private communications firms may encounter new tariffs and regulations designed to slow the flow of information and communications services to the third world. New tax laws have also been proposed which would require the payment of a portion of the assessed value of information flowing into or through a country. Future restrictions can also be expected on the establishment of ground stations and on access to the foreign transmission lines necessary for the terrestrial transmission of satellite data. Communications Satellites Not long after ITU began to regulate satellite communications certain international tensions arose concerning its methods of allocating what many believed to be scarce space resources.jl Radiofrequencies that have been duly registered with ITU receive international recognition and protection. Therefore, early registration of a radiofrequency is given priority over later requests for the registration of the same frequency. Many developing nations have voiced opposition to this principle of priority on the basis that future access to the radio spectrum and positions in geostationary orbit, which are necessary for effective satellite communication, will be limited by the present activities of the developed nations. Reflecting this concern, the ITU convention was modified in 1973 to state: OB. Cowlan, internationally Organizing for Space, paper submitted to International Conference on Doing Business in Space, Nov , 1981, reprinted in ALI-ABA Conference Materials. 31 rd. M. Matte, op. cit.

7 Appendix F The International Legal Regime of Outer Space 353 In using frequency bands for space radio services, Members shall bear in mind that radio frequencies and the geostationary satellite orbit are limited natural resources, that they must be used efficiently and economically so that countries may have equitable access to both in conformity with the provisions of the Radio Regulations according to their needs and the technical facilities at their disposal.32 There is considerable confusion in the international community as to what is meant by the efficient and economical use of radiofrequencies and the geostationary orbit. The developing states have argued that because these resources are limited, an a priori allocation should be made to assure that countries which presently do not utilize space may be able to do so in the future. The states with substantial space resources have generally taken the position that attempts to reduce space to an international condominium are neither efficient and economical nor sanctioned by international law. It has been argued by the United States that the allocation of space resources on any basis other than use is inefficient because it reduces the incentive to adopt spectrum and orbit conserving technologies and patterns of use. 33 The United States and other developed countries maintain that through the creative use of the frequency spectrum, as seen in the adoption of 30/20 G Hz for communications, and the development of new space systems, such as large space platforms, the future needs of the developing countries can be easily met. However, some third world countries feel that it is not in their best interest to continue to rely on the developed countries to supply their communication needs. Several of these countries, notably India and Brazil, are in the process of developing an indigenous satellite communication capability. In the near future, the communication systems developed by these countries will be less sophisticated and therefore less efficient than those designed by nations already well versed in space technology. A priori allocation plans are attractive because the satellites they will be developing may require the type of orbital spacing presently utilized. The developing countries may argue that it is in their best interest to resist an international regime predicated on the development of advanced, resource-efficient technology because such a regime would render their indigenous technology obsolete. There is some question as to whether a priori allocation plans might not be contrary to the letter and the spirit of the 1967 Outer Space Treaty. Article 2 of the treaty states: J~lnternat(ona/ Te[ecornmuntcation COflveflttOfl, OP. c;t ]Qffice of Technology Assessment, Op. cit., P. 30 Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The developed countries have taken the position that the assignment of orbital positions to states would constitute an appropriation and therefore is forbidden by the Outer Space Treaty. The third world has generally argued that since the geostationary orbit is only useful in connection with communication satellites, and since ITU regulates the latter, it should also have jurisdiction over the former. The United States has opposed this extension of the power of ITU. The subject of a priori allocation of radiofrequencies and geostationary orbit positions was addressed but not resolved at the latest WARC in This subject will be debated again at the 1983 RARC and the 1984 WARC where, it is hoped, a reasoned and practical solution can be found that will accommodate the needs of both the developing and the developed nations. Direct Broadcast Satellites (DBS) DBS are a new generation of communications satellites capable of transmitting signals strong enough to be picked up by individuals utilizing small (less than 1 m in diameter), home receiving dishes.j 4 This is to be contrasted with the currently operating communications satellites that transmit weak signals to large, fixed Earth stations that must then rebroadcast the signal to the public using terrestrial facilities. The major advantage of DBS technology is that it does away with the need for an elaborate terrestrial distribution system, thereby making possible the transmission of programs to widely dispersed populations, remote areas, or to countries without a sophisticated communications infrastructure. The research and development necessary to realize DBS technology was undertaken by the National Aeronautics and Space Administration and proven in both the U.S. ATS-6 and the Canadian/U. S. CTS satellites. Presently, France, Germany, Luxembourg, and groupings of Arab and Scandinavian countries are planning for DBS systems or for multipurpose communications satellites able to directly broadcast.js Some of these systems are planned for operational status by the mid-] 980 s. Though DBS technology offers the potential for large-scale educational, health and public service programing a fact that was amply proven by the Wee generally: Policies for Regulation of Direct Broadcast Satellites, Federal Communication Commission staff report, September JSBarbara Luxenberg, Preliminary OK for Direct Broadcast Satellites, Aeronautics and Astronautics, September 1981, p. 20.

8 354 Civilian Space Policy and Applications U.S./India ATS-6 experiments some have raised serious questions concerning the international regulation of this technology. The Soviet Union has expressed concern that DBS maybe used to spread propaganda or misinformation designed to create social unrest. Several third world countries have expressed the fear that this technology will be used by the Western, developed nations as a tool of cultural or economic imperialism. It is feared that commercial advertising by the developed countries might disrupt the social fabric of developing nations by creating a demand for consumer goods that is not consonant with national plans for social and economic development. The Soviet Union, France, and numerous Third World countries have argued that the sovereign rights of a country prohibit broadcasting across national boundaries in the absence of a prior agreement with the receiving state. The United States has opposed this view and has advocated a policy of free flow of information. The opposition of the United States to the doctrine of prior consent has centered around four major themes that can be summarized as follows:qb 1. There has been insufficient experience with broadcast satellites to determine what, if any, political constraints should be placed on their use. In the DBS debates of the early 1970 s the United States argued that it was unwise to fashion regulations without knowing the specific problems that would be caused by this technology. The ATS-6 experiments in India were frequently used as an example of the fact that the control over programing and distribution of DBS services could remain firmly within the local government of the receiving country, thereby obviating the need for international regulation. The United States still maintains that as experience with transborder DBS service grows, the fears of cultural imperialism presently harbored by many nations will diminish. 2. Enactment of a set of political principles for DBS could inhibit the development of technology valuable to the third world countries. Most of the technical problems with DBS have been, or are in the process of being solved. The two major questions from a domestic U.S. perspective are how to configure DBS satellites to respond to specific markets and whether DBS offers a significant economic advantage over conventional means of broadcasting. Restrictive international regulations may make economically unjustifiable JbThe following four themes derived from: Wilson P. Dizard, The U.S. Position: DBS and Free Flow, )ourna/ of Communication, vol. 30, spring 1980, pp the expenditures necessary to adapt DBS technology to the particular needs of developing countries. This is particularly true if the private sector is to play a significant role in this development. ITU regulations constitute a sufficient safeguard against unauthorized DBS transmissions. Some U.S. experts argue that the need for technical coordination has obviated the need for political regulation. In addition to providing working definitions for the various types of DBS service and allocating frequencies to DBS, the ITU, in 1971, adopted Radio Regulation 428 A which provides: In devising the characteristics of a space station in the broadcasting-satellite service, all technical means available shall be used to reduce, to the maximum extent practicable, the radiation over the territory of other countries unless an agreement has been previously reached with such countries. In the view of the United States, the ITU procedures are a sufficient safeguard against the misuse of DBS technology and are, in fact, a form of prior consent. The countries that do not accept this position argue that the ITU decisions deal only with the physical transmission of a satellite signal and do not address the right of countries to regulate the message content of foreign broadcasts. The prior consent principle undermines the concept of international free flow of information. The United States has taken the position that the free exchange of ideas and information, as affirmed in article 19 of the Universal Declaration of Human Rights and other U.N. resolutions, should not be inhibited.q 7 Many U.S. experts believe that acquiescence in a prior consent regime for DBS would be an undesirable precedent that could be applied to other means of communication or dissemination of information. The DBS issue can be viewed as one aspect of a growing pattern of restraints being promoted under the umbrella of the New World Information Order. In addition to the positions held by those advocating prior consent and the United States, a third, compromise position has been put forward in a joint proposal by the Canadian and Swedish Governments. 38 This proposal suggests that advance agreement would be necessary concerning the basic issue of broadcasts by the satellites of one country into the territory of another country. However, the content of the trans- 37U, N. General Assembly Resolution 217 (Ill), Dec. 10, Js Draft Principles Governing Direct Television Broadcasting by Satellite, U.N. Document A/AC, 105/1 17, 1973.

9 Appendix F The International Legal Regime of Outer Space Ž 355 missions would be left to the discretion of the broadcasting country. To date, this proposal has not gained substantial support of either the United States or the countries which advocate a prior consent regime. Remote Sensing The term remote sensing refers to the use of satellites capable of detecting reflected or emitted electromagnetic radiation for the purpose of gathering information about the Earth.39 Presently, the only civilian remote-sensing system is the Landsat system of the United States. Though this system is operated by the Government, there is considerable indication that the private sector may have a significant role to play in remote sensing in the near future. (For a more complete discussion of the private sector s role in remote sensing, see ch. 2) If the policy decision is made in the United States to encourage the private sector to take as active a role in remote sensing as it has taken in communications satellites, the Government must ensure the existence of a receptive economic and legal environment. The existence of a restrictive international regime could limit the private sector s ability to invest in this new technology. There has been considerable discussion in the international community concerning what restrictions, if any, should be placed on the use and distribution of remotely sensed data. Some of the major principles being discussed are: Prior consent. Some states have argued that countries planning to engage in remote-sensing activities should be required first to obtain the permission of the countries they intend to sense. Restricted data dissemination. A recent joint proposal by the French and the Soviets has suggested that information gathered by remote sensing should not be transferred to third-party states without the prior consent of the state sensed. Limited resolution. Some states have evinced concern regarding advances in remote-sensing technology that will allow extremely detailed observation. They feel that if such data were freely available from a civilian commercial system it might threaten the security and economic interests of the sensed state. Unrestricted sensing. The United States has generally opposed the placing of restrictions on remote-sensing activities and data dissemination. The United States presently maintains a policy of free data dissemina- Jqs ee generally: National Academy of Sciences, Resource Serwng From Outer Space, 1977; N. M. Matte, H. DeSaussure, Lega/ /mp/ications of Remote Sensing From Outer Space, 1976, tion and regularly supplies Landsat data to other governments, international organizations, private sector businesses and individuals. It is helpful to analyze some of the legal arguments used to defend the positions that were articulated above. Basically, arguments that favor limiting remotesensing activities are premised on the assumption that the rights of territorial sovereignty allow a state to protect itself from information gathering activities directed toward its own natural resources. There is very little in either traditional international law or i n the treaties which deal specifically with space that substantiates this assumption. It is generally accepted that a sovereign nation may protect itself from information gathering activities within its borders, either on the ground or from the air. The legal basis for each of these manifestations of sovereignty is not necessarily applicable to outer space activities. Because traditional international law recognizes that the laws of a sovereign state apply to all within its borders, activities of foreign nationals may be controlled while they are physically within that state. Likewise, traditional international law, and article 2 of the Chicago Convention of 1944, recognize that a state has absolute sovereignty over the air space above its national boundaries, 40 Control over the activities of foreign nationals in both cases is predicated on the fact that such activities are accomplished within the sovereign territory of a state. Remote sensing is problematic from a legal perspective because, on the one hand, it is an activity undertaken in space, and the 1967 Outer Space Treaty guarantees that space shall be free for exploration and use by all States; yet, on the other hand, the activity is directed toward the observation of territories under the control of separate sovereign states. For this reason, many nations have argued that some form of international control is necessary to protect the interests of the sensed states and to prevent abuses that may result from the dissemination of remotely sensed data. The United States takes the position that restrictions on remote sensing would result in data being available to only those states having the financial and technical ability to provide their own space and ground systems. Furthermore, even if a country had the technology to fly a remote-sensing system, it would not be inclined to do so if it knew in advance that it would have to undertake the financially prohibitive and scientifically disadvantageous exercise of separating the billions of bits of remotely sensed data along political boundaries. 61 Statistics 1180, 15 U.N.T. S. 295.

10 356 Civilian Space policy and Applications OUTER SPACE TREATY Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies Done at Washington, London, and Moscow January 27, 1967; Ratification advised by the Senate of the United States of America April 25, 1967;. Ratified by the President of the United States of America May 24, 1967; Ratification of the United States of America deposited at Washington, London, and Moscow October 10, 1967; Proclaimed by the President of the United States of America October 10, 1967; Entered into force October 10,1967. B Y THE P RESIDENT OF THE U NITED STATES OF A MERICA A PROCLAMATION W HEREAS the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was signed at Washington, London, and Moscow on January 27, 1967 in behalf of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics and was signed at one or more of the three capitals in behalf of a number of other States; WHERE.AS the text of the Treaty, in the English, Russian, French, Spanish, and Chinese languages, as certified by the Department of Stab of the United States of America, is word for word as follows: (23)

11 ANNEX XIX Article Z Article 111

12 45s ANNEX XIX THE OUTER SPACE TREATY 459 Article IV.. Article V Article 1X Article VI Article X Article VII

13 .4rtic/2 XI Article XV Article Xll Article XV1 Article X111 I Article XV1l.4rticle XIV